It is 2020. This year I tried to get my parents out of jail many times. It was very hard to do and went on for months. In the end, it was only when my Dad started dying that things really changed.
Mum and Dad were in an aged care facility where management would not let them leave, detained them in their rooms, forced them to have COVID tests, and would not let them have visitors for weeks at a time.
My Dad, aged 90, died in September. Mum, 92, died in October. COVID-19 had nothing to do with their deaths. But fear of COVID-19 had lots to do with how they were treated by their aged care provider in the months before they died.
I want to say thank you to the staff for looking after Mum and Dad and doing their best to support our family, especially in the last few weeks. And I acknowledge that this provider was great on infection control – to my knowledge no resident there was infected.
But I am concerned about the position that head office took and steadfastly held for months to overly restrict the lives of the residents – far beyond state government directive requirements.
From what I can see, illegal detention, false imprisonment and even the tort of battery have been “business as usual” across Australia under the reign of COVID-19. Even when nobody in a facility had the virus, or there was no real risk of transmission.
Even in the case of outbreaks, the spread of COVID in aged care was usually due to transmission from staff or poor infection control, not from residents, and not due to visitors.
Governments and regulators need to take simple steps to stop these unlawful restrictions across the aged care sector immediately.
Somehow the COVID reign ushered in a new world where we pretended the law didn’t exist, at least for older people. But fear of an infectious disease does not suddenly give property managers the right to detain people, ban them from seeing their families or prohibit them from getting exercise or fresh air.
Those who think that COVID changed our fundamental legal system are delusional. I am a barrister. I’ve done aged care legal work and I also train public servants in what is called ‘administrative law’. I teach people about legislation and where to find statutory power. I know from many years of training government that there is a widespread tendency to favour policies, codes and guidelines over the law. It’s wrong, but it’s common.
During my parents’ lives, we took for granted basic human rights that are an integral part of the Australian way of life, such as freedom of movement and the right to socialise.
But our aged care providers, governments and regulators don’t seem to really care about these rights. They took them away, stood by watching, or encouraged their removal.
Providers can’t just sweep away these rights. They don’t have authority. They are just property managers who provide care to people. They are not lawmakers. Nor prison wardens. In Australia, if somebody detains you or imprisons you without lawful authority, they will be committing a tort or even a crime. They can be sued, and ordered to pay significant sums to the falsely imprisoned person.
Jeremy King, a solicitor who has sued the police for false imprisonment, has seen a court award $30,000 for 30 minutes of false imprisonment. He says: “In addressing the health concerns of COVID-19, it was imperative that a balance be struck between combating the virus and ensuring an individual’s basic civil liberties were protected. If those in aged care were simply locked away without lawful justification and/or without reference to the statutory health restrictions at the time, this is prima facie a case of false imprisonment.”
What would a provider have to pay in damages if they were sued for false imprisonment? What if they locked you up for two weeks? Or 66 days?
Providers have been locking up thousands of people and banning them from social contact – even when no rational threat of COVID existed in those homes. Residents have lost health and mobility. They haven’t been allowed to walk around the corridors or step out into the garden. They have become depressed. They have wanted to die. In fact, how many of them have actually died because of this inhumane and illegal treatment?
Let’s be clear. I am not raising issues about state government health directions made under legislation. I am only raising issues about providers locking people in their rooms and banning visitors with no statutory government directions. Fear of COVID-19 does not create the power to detain.
It’s simple. We don’t need to overcomplicate things. Let’s just read the law. Commonwealth legislation says that aged care residents have rights to “move freely both within and outside the … service without undue restriction”, to “select and maintain social and personal relationships with anyone else without fear, criticism or restriction”. Providers have to protect these rights.
But the Aged Care Quality and Safety Commissioner’s letter to “approved providers” on December 7 does not highlight these legislative rights. Nor does the Industry Code for Visiting Residential Aged Care Homes during COVID-19, an “agreed industry approach” with input from government. Sorry, but you can’t “agree” amongst yourselves to imprison people. You can’t use terms like “balancing risk”, “best practice” or “escalation tiers” to avoid the clear imperatives of the law.
I don’t want to live in a country where we treat elderly people differently, trample on their rights, and ignore the law when we feel like it. I realise nobody wants to die from COVID-19. Nor does anyone want their aged care facility to be slack about hygiene.
But that doesn’t justify unlawful detention or banning visitors at a provider’s whim. If a provider claims: “I’m caring for you”, “I have the best intentions”, “I’m balancing risk” or “I don’t have enough staff to handle visitors”, it doesn’t mean they have the power to lock you up.
Providers need to follow the law. Regulators and governments need to enforce it. Clearly, succinctly, and swiftly. There’s one clear message for providers that regulators need to say now: “You cannot detain people or prevent visitors to them unless you have statutory authority. If you do this without authority, you could be sued for false imprisonment, and you will certainly be sanctioned.”
Fiona McKenzie is a Melbourne barrister and a trainer in administrative law.
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